Opinion 03-126

December 11, 2003


Digest:         (1) Where the District Attorney has asked the judge to appoint “shadow counsel” to assist the defendant, who wishes to cooperate with the police in drug investigations, and who has stated that his/her present attorney deals in cocaine, the judge must first designate a lawyer to advise the defendant about the potential conflict of interest between him/herself and the defense attorney, and of the defendant’s available options for future representation; (2) should the defendant thereafter seek the appointment of “shadow counsel” the judge must determine, as a matter of law, whether the use of “shadow counsel” is legally permitted; and (3) after the judge resolves the question of representation the judge should exercise recusal.


Rules:          Jud. Law §212(2)(l); People v. Stewart, 230 A.D.2d 116 (1st Dept. 1997), appeal dismissed 91 N.Y.2d 900 (1998); 22 NYCRR 100.1; 100.3(B)(6); 100.3(E)(1).


         The inquiring judge seeks this Committee’s guidance concerning "the dilemma currently pending before this Court" involving a criminal defendant in a drug case who has stated that his/her attorney was "also dealing cocaine." Attached to the inquiry is a letter from the District Attorney to the judge which the judge states sets forth an accurate history of the events thus far. The judge has informed the District Attorney that the judge would be seeking this Committee’s advice. The following summary of the events in question is taken from the District Attorney’s letter.

         An assistant district attorney and a state trooper assigned to a drug enforcement task force met with the defense attorney and the defendant who is under indictment on drug charges and was in jail in lieu of bail. The meeting was at the defendant's request "since the defendant is seeking to cooperate with law enforcement regarding various drug dealers in the area in an effort to receive a more favorable plea and sentence bargain. The proposed cooperation included actively assisting the police with undercover narcotics investigations." Following a discussion of the ground rules governing the conference, the defendant's attorney left the room, stating that he/she did not want to be present during the debriefing."The defendant, thereafter, discussed several drug dealers in detail, with much of the information corroborated by ongoing police investigations. Toward the end of the meeting the defendant revealed that the defendant's attorney in the instant case was also dealing cocaine. Given the reliability of the previous information, as well as a prior federal investigation several years ago involving this attorney, the defendant's disclosure about the attorney appears credible on its face."

         Three days later the assistant district attorney disclosed to the judge the information the defendant provided regarding the defendant's attorney and discussed with the judge a possible in camera proceeding. Nine days later the prosecutor met again with the judge "to report the finding of his research and to further discuss how to best protect the defendant's rights while proceeding with the investigation." The next day the District Attorney sent a letter to the judge along with a proposed order for the possible appointment of "shadow counsel," and the day after spoke with the judge "regarding the issues and the appointment of 'shadow counsel' to protect the defendant's rights." Also, the District Attorney informed the judge that the defendant's attorney had been calling regarding release of the defendant from jail so that he/she could cooperate with the police.

         Thereafter, the assistant district attorney met with the judge's law clerk " to update the Court as to the defense attorney's inquiries and to further discuss how to proceed." Two days later the District Attorney and the assistant district attorney met with the judge and further discussed the legal and ethical issues involved,including " how to proceed with the defendant's cooperation regarding other drug dealers in order to further establish the cooperating defendant's reliability before pursuing an investigation of the attorney, as well as to not alert the defendant's attorney that he may be subject to the investigation and to build cases against others selling cocaine in area." At this meeting the judge informed the District Attorney of his/her intention to seek the advice of this Committee and requested the letter from the District Attorney.

         At the conclusion of the letter the District Attorney sets forth the requests being made of the judge:


What this office has asked of the Court is as follows: (i) hold an in camera proceeding with the defendant, without the defense attorney, but with another attorney who may be appointed “shadow counsel” to advise the defendant regarding this situation and protect the defendant’s rights; (ii) upon the consent of the defendant, appoint “shadow counsel” to assist the defendant through the investigation, provide an attorney with whom my office can discuss the defendant’s cooperation and eventual plea bargain that is most favorable to the defendant, as well as protect the attorney-client privilege; (iii) provide the means for the police to further ensure the reliability of the cooperating defendant by taking a sworn written statement from the defendant and proceed with the narcotics investigation involving others before starting the investigation of the defense attorney inorder to confirm or dispel the allegations of the attorney selling cocaine.

         The judge, in turn, seeks this Committee’s guidance as to whether the court should proceed in the manner proposed by the District Attorney; or, if not, whether there is an ethically proper alternative course of conduct to follow. In addition, the judge asks whether any of the circumstances set forth “created a situation which requires me to recuse, either from the current case pending against the defendant or a potential case involving the indictment of the attorney.”

         In assessing the judge’s situation and requests, we are mindful of the statutory mandate of this Committee to "issue advisory opinions to judges and justices of the unified court system upon the request of any one judge or justice concerning one or more issues related to ethical conduct or proper execution of official duties or possible conflicts between private interests and official duties.” Jud. Law §212(2)(l).


         In meeting that statutory obligation, and as further explained herein, we conclude that, at this particular juncture, the judge in executing his/her judicial duties should not sign the proposed order appointing “shadow counsel.” We believe it is now premature for the judge to consider and determine that prosecutor’s request. For, while the District Attorney recognizes the necessity of obtaining the defendant’s consent to such a procedure, it can not be emphasized enough that such consent must be an informed one. This consent cannot be deemed “informed” in our view, unless and until the defendant is fully advised of the nature and consequences of the potential conflict of interest between him/herself and present counsel. Neither the prosecutor nor the judge is the best person to convey such advice to the defendant. We conclude therefore that such advice can only be provided by an independent attorney whose single-minded purpose is the defendant’s best interest.


         Accordingly, we recommend that the judge hold an in camera proceeding in the presence of an attorney designated by the judge, who would essentially remain silent while the judge informs the defendant that, in the court’s view, there exists a potential conflict of interest between the defendant and his/her attorney and that the lawyer now present is prepared to advise the defendant concerning the nature and possible ramifications of that conflict as well as the options available to him/her. This would be the sole role of this particular attorney, who would have no further involvement in the case once that limited task was completed. The judge would not participate in any conference between the two.


         The Committee does not regard the use of such an attorney by the judge for the sole purpose stated as constituting the appointment of "shadow counsel", as that term is used by the District Attorney or by the New York courts in what apparently is the only reported decision on the subject (see People v Stewart, 230 AD2d 116[1st Dept. 1997], appeal dismissed 91 NY2d 900 [1998]). It is surely not uncommon for parties in civil or criminal litigation to consult counsel other than their present attorney of record. Furthermore, after such consultation, the client may discharge that attorney and retain substitute counsel. Here, the judge is merely affording the defendant the opportunity to consult with a separate lawyer in order to enable him/her to make a considered judgment as to which form of representation is in his/her best interests. Indeed, we regard this role for the judge as one that fulfills the judiciary’s vital function to protect the rights of criminal defendants. The prosecution likewise recognizes the necessity of protecting the defendant’s rights as evidenced by the District Attorney’s repeated and commendable references to such an imperative in his/her letter to the judge.


         In making this recommendation the Committee is not unaware of the possibility or likelihood that the defendant might opt, under such circumstances, to discharge present counsel and seek a new lawyer to represent him/her in the criminal proceeding, a scenario that could potentially impede the yet-to-be initiated investigation into that attorney’s conduct. But, if that is the result, it follows not from any action by the judge, but rather from the conscious decision of the defendant based on advice given to her by independent counsel and the defendant’s own choice about the course which best serves his/her interests.


          However, that is not the only option the defendant might choose. Upon reflection, the defendant might conclude that it is in his/her best interests not to discharge the present attorney, but, rather to ask for or agree to the appointment of secret or "shadow counsel."


         Thus, we next consider People v Stewart, supra, and its implications for this ethics opinion. In Stewart, a criminal defendant in a drug case, informed the court, unbeknownst to his attorney, that he wanted a new lawyer but was afraid to discharge Ms. Stewart because the person who paid her fee was the head of a drug ring, and that the lives of the defendant and his family would be in danger if he

discharged her. The judge then appointed "shadow counsel" to represent the defendant in his attempted cooperation with the District Attorney. Given the procedural posture of the case, the Appellate Division did not decide the legality of appointing "shadow counsel" under those circumstances; . but the Court did reject the lengthy denunciation of such a procedure by the lone dissenting justice who deemed the use of “shadow counsel” legally and ethically improper. Responding to the dissent’s attack, the majority wrote, "[t]he dissent...in its condemnation of secret counsel would hinder the ability of the People to protect possible witnesses and to investigate and expose possibly criminal participation by attorneys in furtherance of the drug trade"( 230 AD2d at 124). Further, the Court noted that "the dissent conveniently does not cite to one case which makes the use of ‘shadow counsel’ illegal or a breach of ethics"(230 AD2d at 125). However, the Court of Appeals, in dismissing Stewart's appeal on jurisdictional grounds, explicitly noted that by reason of such a mandated dismissal, the Court of Appeals had "no authority to address the issue of 'shadow counsel,' argued by the parties.” Therefore, its dismissal had no precedential value for the concept of appointing “shadow counsel” ( 91 NY2d at 902).


         The issue posed to us and one which may confront the inquiring judge is one for which there is no final, authoritative New York decision. However, the Advisory Committee on Judicial Ethics is not the appropriate body to address and resolve such an issue because it is primarily a legal question to be resolved by the courts. As we have stated in the past, this Committee is not an adjudicative body. Indeed, it would be highly inappropriate for the Committee, as an ethics advisory body only, to issue an opinion which, in effect, would purport to determine such an important issue of law. We therefore decline to express an opinion concerning the legality of appointing "shadow counsel" to represent the defendant during the course of his/her attempted cooperation with the prosecutor. Nevertheless, should the judge conclude that it is lawful to provide “shadow counsel”, the defendant may retain an attorney to serve in that capacity, or, if he/she is without the necessary resources, the judge would appoint new counsel. However, we believe that the attorney appointed should not be the same attorney whom this judge had appointed to provide the initial advice to defendant. In our view, an appointment of the same attorney would be vulnerable to a claim, unfounded or not, that his/her advice was tainted by a desire to be appointed or retained as the new attorney of record.


          Also raised by the inquiring judge is the question of his/her own recusal. In our opinion, the judge should exercise recusal. In light of the extensive ex parte discussions and consultations between the District Attorney and his/her staff, with the judge and his/her staff, however understandable and unavoidable, we believe it would be advisable for the judge to sever his/her connection with the case. That would allow it to proceed to an ultimate disposition without having to address concerns that the judge’s neutrality has been, or appears to have been compromised (see 22 NYCRR 100.1; 100.3[B][6]; 100.3[E][1]. Ordinarily, such recusal would occur at the earliest opportunity. Here, however, in order to avoid having a new judge confront the very same issues posed by the inquirer, we advise that the recusal take place as soon after the question of defendant’s representation has been resolved as possible. As to the question of recusal, in the event the present attorney is subsequently indicted, we conclude that any advice we would now offer would be based on sheer speculation, in view of the fact that an investigation has not commenced and its outcome is therefore unknowable.


         Finally, the District Attorney’s proposal that the court have the defendant execute a sworn written statement to be given to the police, is obviously one that can only be determined by the defendant after receiving the advice of counsel. The judge, who is not an arm of either the police or the prosecutor (or, for that matter, of the defense) should not authorize or forbid the taking of such a statement. As stated, that is a decision to be made by a properly advised defendant. Thus, it must await the resolution of the question of counsel.